Wednesday, August 31, 2011



In a sequence of cases before the Irish High Court involving deportations of parents of Irish citizen children, (see case of Alli and Isobor and the Minster for Justice), the “Best Interests of the Child” principle became overshadowed by a different legal principle, which one could call the “legitimate aims and obligations of the State” principle.  Theses cases set a precedent that an Irish citizen child’s rights to family life is not breached by a deportation order against the child’s parent unless there is “insurmountable obstacles” preventing the family moving to the home country of the parents and carrying on their family life there.

The UK Supreme Court have set a very different threshold for the assessment of such cases in focussing first and foremost on the best interests of the child, whatever the nationality of that child. The case of ZH (Tanzania)[1] (concerning the removal of a non-British parent of a UK citizen child) held that the over-arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK.

Lady Hale in the above case provided the leading judgment:

In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first.”

Following ZH (Tanzania), the obvious question became how far can the “Best Interest of the Child ” principle be extended? Could it be argued that it is always in the best interest of a child to remain in a relatively wealthy and socially protected State such as the UK/Ireland, by way of comparison to the State of nationality of the child? Could the “Best Interest of the Child ” principle be successfully applied therefore to children of non EEA nationality seeking to remain in the UK/Ireland on the grounds of  better standard of living perhaps?

In the case of  E-A (Article 8 – best interests of child) Nigeria, judgement issued on the 22nd July 2011, Mr Justice Blake, (President of the Upper Tribunal, Immigration and Asylum Chamber) shed light of these queries while assessing the rights of a family of Nigerian citizens to remain in the UK pursuant to Article 8 of the European Convention of Human Rights. The family were residing in the UK on the basis of student/ dependant temporary permission, and arguments were made on behalf of the children that it was in their best interest to remain in the UK rather than be returned to Nigeria.  It was interesting to see how Mr Justice Blake interpreted the Supreme Court’s case of ZH (Tanzania) in light of the facts before him, ultimately finding that neither Article 8 or the “Best Interest of the Child ” principle was infringed by returning the family to Nigeria. The following are the principles points highlighted in the judgment;

(i)              The correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where it is in the best interests of a child to live with and be brought up by his or her parents, then the child’s removal with his parents does not involve any separation of family life.

(ii)            Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case

(iii)          During a child’s very early years, he or she will be primarily focused on self and the caring parents or guardian.  Long residence once the child is likely to have formed ties outside the family is likely to have greater impact on his or her well being.

(iv)               Those who have their families with them during a period of study in the UK must do so in the light of the expectation of return.

(v)                The Supreme Court in ZH (Tanzania) [2011] UKSC 4 was not ruling that the ability of a young child to readily adapt to life in a new country was an irrelevant factor, rather that the adaptability of the child in each case must be assessed and is not a conclusive consideration on its own.

We hope to see the Irish Immigration process moving in similar line to the UK, that is to make the “Best Interest of the Child ” principle a matter or primary consideration is cases involving the residence rights of children and their parents, what ever the nationality of the child. 

Brophy Solicitors

[1] ZH (Tanzania)  (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC

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